Contesting a Will in Queensland
In Queensland, under the Succession Act 1981, certain categories of people are eligible to make a Family Provision Application if they believe they have not been adequately provided for. A Family Provision Application is sometimes referred to as contesting a Will or challenging a Will. A Family Provision Application is a legal claim made against a deceased person’s estate by someone who was dependent on or had a close relationship with the deceased and feels that the provision made for them in the Will is insufficient.
Stepchildren fall into one of these categories. A stepchild has the exact same rights as a biological or adopted child. There is no requirement in Queensland to demonstrate that there was a dependent relationship on the stepparent or that the stepchild lived with the deceased, simply that they were a stepchild of the testator at the time of their death.
Are you a stepchild?
A stepchild is the biological or adopted child of a person who is or was married or in a de-facto relationship with the deceased. A stepchild can still contest a Will if their biological or adopted parent died before the testator as long as the relationship was still intact. The stepchild/stepparent relationship will immediately end if the deceased person and the stepchild’s parent divorce or end their de-facto relationship.
A stepchild’s eligibility will not be affected if the stepparent remarries or enters a new de-facto relationship after the death of the stepchild’s parent.
What are the time limits to contest a Will?
The stepchild must notify the executor in writing of their intention to contest the Will within 6 months of the deceased’s death and they must file their claim application and commence proceedings in court within 9 months of the deceased’s death.
Factors considered by the court?
The court will consider a variety of factors when undertaking a Family Provision Application, including:
- Financial Needs and Resources: The financial and personal situation of the stepchild.
- Nature of the Relationship: The relationship between the stepchild and the deceased.
- Level of Dependency: The degree to which the stepchild was dependent on the deceased.
- Competing Claims: The claims and needs of other beneficiaries or applicants.
- Estate Size: The size of the estate and the ability to satisfy the claims.
Key Takeaways
It is important to note that whilst stepchildren have the right to contest a Will in Queensland, the prospects of their claim will depend on the specific circumstances of the case and whether adequate provision was made for them in the Will.
Need advice?
If you believe you have not been adequately provided for in a Will, our experienced Estate Litigation Solicitors at Greenhalgh Pickard are here to help. We provide compassionate and effective support, ensuring your rights are upheld and your claim is thoroughly assessed.
Disclaimer:
The information contained in this newsletter is provided for informational purposes only and should not be construed as legal advice on any subject matter. Readers should not act or refrain from acting on the basis of any content included in this newsletter without seeking appropriate legal or other professional advice. The content of this newsletter contains general information and may not reflect current legal developments, verdicts, or settlements. We expressly disclaim all liability in respect to actions taken or not taken based on any or all the contents of this newsletter.
Greenhalgh Pickard’s Wills and Estates Team
